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Category Archives: Contracts

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Browsewrap Agreement Held Unenforceable – Website Designers Take Note!

In Nghiem v Dick’s Sporting Goods, Inc., No. 16-00097 (C.D. Cal. July 5, 2016), the Central District of California held browsewrap terms to be unenforceable because the hyperlink to the terms was “sandwiched” between two links near the bottom of the third column of links in a website footer.  Website developers – and their lawyers … Continue Reading

Craigslist Files Another Suit against Data Scraper

For years, craigslist has aggressively used technological and legal methods to prevent unauthorized parties from scraping, linking to or accessing user postings for their own commercial purposes.  In a prior post, we briefly discussed craigslist’s action against a certain aggregator that was scraping content from the craigslist site (despite having received a cease and desist … Continue Reading

California Court Refuses to Dismiss Biometric Privacy Suit against Facebook

The District Court for the Northern District of California recently issued what could be a very significant decision on a number of important digital law issues.  These include: the enforceability of “clickwrap” as compared to “web wrap” website terms of use, the enforceability of a choice-of-law provision in such terms of use, and a preliminary … Continue Reading

Self-Publishing Platforms Deemed Distributors, Not Publishers in Privacy Suit over Unauthorized Book Cover

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content.  A recent case touches on some of the important legal issues associated with such change.  Among other things, the case illustrates the importance of … Continue Reading

Clickwrap Agreement Available Only Through Hyperlink Enforceable Under New York Law

Last week, the Southern District of New York followed a long line of precedent under New York law and upheld the enforceability of a website clickwrap agreement, granting a website operator’s motion to compel arbitration pursuant to a clause contained in the agreement. (Whitt v. Prosper Funding LLC, 2015 WL 4254062 (S.D.N.Y. July 14, 2015)). … Continue Reading

Meeting of the Minds at the Inbox: Some Pitfalls of Contracting via Email

We have had a number of clients run into issues relating to whether or not an email exchange constituted a binding contract.  This issue comes up regularly when informality creeps into negotiations conducted electronically, bringing up the age-old problem that has likely been argued before judges for centuries: one party thinks “we have a deal,” … Continue Reading

QVC Sues Shopping App for Web Scraping That Allegedly Triggered Site Outage

Operators of public-facing websites are typically concerned about the unauthorized, technology-based extraction of large volumes of information from their sites, often by competitors or others in related businesses.  The practice, usually referred to as screen scraping, web harvesting, crawling or spidering, has been the subject of many questions and a fair amount of litigation over … Continue Reading

Browsewrap Agreement Held Unenforceable Against Consumer Due to Insufficient Notice

Many commercial websites rely on “browsewrap” agreements to bind visitors to commercial terms. A recent decision by the Ninth Circuit suggests that a review of how those terms are presented may be in order to ensure enforceability. A browsewrap agreement is a set of terms which is accessible via a hyperlink located on the pages … Continue Reading

In Clickwrap Data Pass Contract Dispute, Second Circuit Sacks E-mail Notice of Post-Transaction Terms

In an important opinion on the enforceability of online contract terms, Senior Circuit Judge Robert D. Sack walks through the last decade and a half of online contracting law on the way to invalidating an arbitration provision in an agreement involving a so-called Web loyalty program. Judge Sack concluded in Schnabel v. Trilegiant Corp., 2012 … Continue Reading

Novell Prevails in Long-Running Dispute over Ownership of UNIX Copyrights – And Open Source Software Moves On

The dispute between The SCO Group and Novell, Inc. over the ownership of copyrights in the code to certain versions of the UNIX operating system, which started eight years ago, appears to have been handed its retirement papers by the Tenth Circuit. Yesterday, on the case’s second visit to the circuit, the court upheld the … Continue Reading

Federal Lawsuit Alleges Infringement of Minors’ New York Right of Publicity by Facebook “Like” and “Friend Finder” Features

In what may represent a new wave in an interesting challenge to the viral nature of social media marketing, a recently filed putative class action asserts a right of publicity claim against Facebook in connection with the service’s “Like” and “Friend Finder” features. J.N. v. Facebook, Inc.,  No. 11-cv-2128 (E.D.N.Y.) (complaint) is an action brought … Continue Reading

Arbitration Clause in Computer Purchase Contract Unenforceable Where Consumer’s Right to Reject Additional Contract Terms Was Not Clearly Explained

Since the Seventh Circuit opinion in ProCD v. Zeidenberg (7th Cir. 1996), judicial analysis of standard form contracts has proceeded along lines that have, in general, been more favorable to the efforts of sellers and licensors seeking to enforce the provisions of “agreement now, terms later” contracts. The ProCD v. Zeidenberg analysis of the relevant … Continue Reading

Web Site Invitation to Submit Art Work for Authentication Does Not a Contract Make, the New York Appellate Division Rules – A General Lesson for User-Generated Content

Can the submission of user-generated content pursuant to an invitation posted on a Web site give rise to  implied  contractual obligations on behalf of the Web site owner?  Although the recent case  of  Thome v. The Alexander & Louisa Calder Foundation, 2009 NY Slip. Op., 2009 N.Y. App. Civ. LEXIS 8707 (N.Y. App. Div. 1st … Continue Reading

Arbitration Provision Unenforceable, Where Online Retailer’s Link to Browsewrap Terms and Conditions Was Not “Prominently Displayed”

When Cynthia Hines returned a vacuum cleaner to online retailer Overstock.com, she was reimbursed for the full amount of her purchase, but Overstock deducted a $30 restocking fee, citing a provision in its Web site Terms and Conditions. Hines filed a purported class action in federal court in the Eastern District of New York asserting … Continue Reading

Facebook Takes a Page from Ticketmaster’s Playbook: Block Unauthorized Web Site Access with Carefully Drafted Terms of Use

In 2007, Ticketmaster brought a multi-count complaint against RMG Technologies, a software company that supplied ticket brokers with software that enabled them to automatically and rapidly access Ticketmaster’s Web site, to the detriment of ordinary users seeking tickets to popular events. The Ticketmaster v. RMG complaint was notable for stating a series of claims that … Continue Reading

Are Clickwrap Agreements with Minors Enforceable? The Fourth Circuit Won’t Say, But the District Court Said Yes

In A.V. v. iParadigms, LLC, 2009 U.S. App. LEXIS 7892 (4th Cir. Apr. 16, 2009), the Fourth Circuit concluded that the archiving of high school student term papers by a plagiarism detection service is protected by the fair use doctrine. Having so ruled, the appeals court did not address the district court’s analysis of the … Continue Reading

Clickwrapped and Browsewrapped – Court Rejects Attorney Plaintiff’s Challenge to Travel Site Terms and Conditions

Case law has developed over the years with respect to enforceability of Web site terms and conditions, and the general parameters are now pretty well understood. Courts will, in general, enforce online terms and conditions against consumer users, provided they are given adequate notice and an opportunity for review. There are numerous exceptions to the … Continue Reading

Sixth Circuit Enforces Disclaimers in Consumer Online Clickwrap Terms of Service

In Doe v. SexSearch.com, Inc., the Sixth Circuit considered the appeal of a user of the SexSearch online dating service from dismissal of his breach of contract, fraud and other state law claims (based on Ohio law) against the service for its failure to screen out underage minors. Doe was arrested and charged with unlawful … Continue Reading
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